“Spoliation”

As Wikipedia explains, spoliation is the “intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding.” As Wikipedia notes, spoliation can give rise to a “spoliation inference,” i.e., a “negative evidentiary inference that a finder of fact can draw from a party's destruction of a document or thing that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding”.

And as Wikipedia also notes, the theory behind the spoliation inference is that

when a party destroys evidence, it may be reasonable to infer that the party had `consciousness of guilt’ or other motivation to avoid the evidence. Therefore, the factfinder [the jury or a judge in a bench trial] may conclude that the evidence would have been unfavorable to the spoliator.

This post is about a federal criminal case in which the defendant argued that the trial judge erred in denying his request that the jury be instructed on spoliation of evidence.

The case is U.S. v. Lanzon, 639 F.3d 1293 (U.S. Court of Appeals for the 11^th Circuit 2011), and this is how it arose:

On September 8, 2005, Detective Clifton of the Miami–Dade Police Department's Sexual Crimes Bureau signed online using the undercover persona `Tom.’ Clifton created an AOL profile for `Tom’ that described him as a male living with his girlfriend and his girlfriend's 14–year–old daughter. `Tom’ entered an internet chat room entitled “Florida Couples.” Lanzon . . . was a participant in this chat room. . . .

At the beginning of their text conversation, Lanzon asked, `she play too?’ Clifton replied, `yes.’ . . . Lanzon asked Clifton to describe the 14–year–old daughter's appearance, and indicated his interest in meeting her. Clifton asked what Lanzon wanted to do with the 14–year–old, and Lanzon responded, `[I] love oral,` `hot passionate sex,’ and `totally satisfying a female.’ . . .

Later that day, Lanzon contacted Clifton. . .. Lanzon typed that he had `been thinking’ [`Tom’s] girlfriend's daughter, and reaffirmed his interest in meeting her.

U.S. v. Lanzon, supra.

The two had “an hour and 20 minute text conversation” about the fictitious girlfriend’s fictitious daughter and what “Lanzon wanted the girl to wear and what sexual techniques would `make her happy.’” U.S. v. Lanzon, supra. In a third text conversation, they agreed that Lanzon, Clifton and the girl would meet at a bookstore in Aventura, Florida, have coffee and proceed to a nearby hotel. U.S. v. Lanzon, supra.

Clifton saved these online conversations by copying the instant message communications and pasting them into a Microsoft Word document. He then saved the Word document to a floppy disc, where the conversations could be printed in hard copy form as transcripts. Clifton did not save any of the instant message conversations in their original format to his computer's hard drive, but he compared the actual instant message `chat screen’” to the word processing document he had created to ensure that they exactly matched and that he had accurately recorded the conversations in their entirety.

U.S. v. Lanzon, supra.

“On September 9, 2005, Lanzon drove to the designated bookstore and parked” near it. U.S. v. Lanzon, supra. “When he entered the bookstore, he approached the two undercover officers posing as `Tom’ and the 14–year–old girl” and was “promptly arrested.” U.S. v. Lanzon, supra. Lanzon was later charged with violating 18 U.S. Code § 2422(b), which makes it a crime to knowingly persuade, induce, entice or coerce any person under 18 years of age “to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or” attempt to do so. U.S. v. Lanzon, supra.

Prior to trial, Lanzon moved to exclude the instant message transcripts, claiming

Clifton deliberately destroyed the original instant message conversations. In the alternative, Lanzon requested a jury instruction on spoliation of evidence.

At the evidentiary hearing [on the motion], Lanzon called a forensic expert who examined Clifton's computer. The expert testified that he recovered only a remnant of the Word document containing the pasted versions of the original conversations.

The expert explained that, because Clifton did not save the document directly to his computer’s hard drive, there was no metadata for the document. Without metadata, it could not be determined whether Clifton altered the original instant message conversations.

Clifton testified that he preserved the conversation in the standard method he learned at the police department. He chose to save the transcripts on floppy disc, rather than the hard drive, to conserve computer memory.

U.S. v. Lanzon, supra.

The district court judge denied Lanzon’s motion to exclude and “reserved a ruling on the spoliation instruction” until the trial. U.S. v. Lanzon, supra. At trial, after the parties had rested but

[p]rior to closing arguments, Lanzon filed a request for jury instructions on spoliation. First, he asked the court to instruct the jury that, under 18 U.S. Code §§ 1512 and 15219, it was a crime for Clifton to destroy or alter evidence.

Second, he requested an instruction on spoliation, which would have permitted the jury to draw an adverse inference from Clifton's actions. The district court refused these instructions because Lanzon failed to present evidence of bad faith on the part of Clifton.

U.S. v. Lanzon, supra.

Lanzon was convicted and appealed, arguing, among other things, that the district court judge “erroneously denied his request for a jury instruction on spoliation and destruction of evidence.” U.S. v. Lanzon, supra. He argued that “the totality of the circumstances in this case establishes the minimal amount of `bad faith’ evidence necessary to obtain a jury instruction on spoliation.” Appellant’s Brief, U.S. v. Lanzon, 2010 WL 5146078.

In making this argument, Lanzon relied on a district court decision in which the judge found that under the cases decided by the 11^th Circuit Court of Appeals,

`bad faith may be found on circumstantial evidence where all of the following hallmarks are present: (1) evidence once existed that could fairly be supposed to have been material to the proof or defense or a claim at issue in the case; (2) the spoliating party engaged in an affirmative act causing the evidence to be lost; (3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.’

Appellant’s Brief, U.S. v. Lanzon, supra (quoting Calizto v. Watson Bowman Acme Corp., 2009 U.S. Dist. LEXIS 11658 (U.S. District Court for the Southern District of Florida 2009).

Lanzon then argued that all of the “hallmarks” the district court judge identified

were present in this case. The IMs and background chats were obviously `material.’ Indeed, the substance and meaning of the IMs were the most critical evidence in the case. Clifton obviously, and concededly, knew the IMs would be used in any prosecution. Yet, he purportedly `copied’ them in a circuitous manner that destroyed all their metadata, both the original electronic data and the secondary data that would have been created if Clifton had `saved’ the initial Word document to his hard drive. . . . Finally, Clifton did not credibly explain his conduct. Indeed, the only explanations he gave for his conduct-- that he merely `used a method that was taught’ to him and that the IMs and chats would consume too much space on his hard drive -- were patently pretextual.

Appellant’s Brief, U.S. v. Lanzon, supra.

The Court of Appeals began its analysis of Lanzon’s argument by noting that a “criminal defendant has the right to a jury instruction on a proposed theory of defense, provided it is a valid defense and there is some evidence at trial to support the instruction.” U.S. v. Lanzon, supra. It also noted that a trial courts refusal to give a defense instruction is reversible error if “`(1) the requested instruction was a correct statement of the law, (2) its subject matter was not substantially covered by other instructions, and (3) its subject matter dealt with an issue in the trial court that was so important that failure to give it seriously impaired the defendant's ability to defend himself.’” U.S. v. Lanzon, supra (quoting U.S. v. Martinelli, 454 F.3d 1300 (11^th Cir. 2006)).

The Court of Appeals concluded, though, that the trial court did not abuse its discretion

in denying Lanzon's proposed jury instructions. As an initial matter, we have not recognized the spoliation doctrine in the criminal context, but we have recognized the potential availability of spoliation sanctions in a civil case where a party fails to preserve evidence. . . . . Spoliation sanctions are `intended to prevent unfair prejudice to litigants and to insure the integrity of the discovery process.’ [Flury v. Daimler Chrysler Corp.,427 F.3d 939 (11<sup>th</sup> Cir. 2005).] An `adverse inference instruction’ is proper in civil cases where a party has failed to preserve evidence and there is a showing of bad faith in doing so. . . .

Assuming arguendo that the doctrine applies in this context, the court did not err in finding no bad faith in Clifton's method of evidence preservation. There is no evidence that portions of the conversations were destroyed or altered, and Lanzon offered no evidence to refute Detective Clifton's testimony that he saved the conversations in their entirety.

U.S. v. Lanzon, supra. For this and other reasons, the 11^th Circuit affirmed Lanzon’s conviction. U.S. v. Lanzon, supra.